引言
在新冠疫情波及全球的當前時期，我們已經看到法律界迅速做出反應並適應新的工作方式。視頻庭審已成爲當下國際仲裁領域被當事人普遍使用的替代性方式。然而，參與方對于視頻庭審仍舊有不少顧慮。比如，是否能夠通過視頻方式成功進行交叉盤問（cross examination）？視頻庭審是否考慮了不同法律文化中的不同風格，亦或是有些當事人或仲裁庭並不適應此種方式？
英國著名國際商事大律師事務所Twenty Essex的三位大律師就國際仲裁中的視頻庭審問題分享了她們的實操經驗，共同撰寫了“A Tale of Two Cities: virtual arbitration in the best oftimes, the worst of times （雙城記：網上仲裁之最好的時機與最壞的時機）”。
在本系列文章彙中，您將從三個不同的角度讀到以下短文：
獨立仲裁員Clare Ambrose女士，主要從仲裁員角度分享了其對視頻庭審的看法和建議。
皇家大律師Sara Masters QC女士，從律師的角度出發，分享了英國法院對于視頻庭審的態度及建議。
大律師Josephine Davies女士，從律師角度出發，分享了其管理視頻庭審的經驗，並就很多細節問題給出了操作建議。
本系列文章的英文原文由Twenty Essex大律師事務所發表于2020年4月，其中Ambrose女士及Masters女士的分享最初由Lexis®PSL收錄並發表。
Twenty Essex是著名的國際商事大律師事務所，在錢伯斯（Chambers & Partners）、Legal 500等業界排名中均享有盛譽。其總部在英國倫敦並在新加坡設立辦公室，更多信息及聯系方式可參見：www.twentyessex.com。
智庫在此感謝Twenty Essex大律師事務所及三位作者的授權與支持。
本文爲本系列文章的第一篇，獨立仲裁員Clare Ambrose女士分享了其對非常時期替代性審理方式選擇的看法（比如更換開庭地點、推遲庭審、部分或全部進行書面審理、視頻庭審等），以及視頻庭審優劣的考量。本文首發于Lexis®PSL Arbitration。
Clare Ambrose女士在商事仲裁及訴訟方面擁有超過25年的經驗，現爲全職獨立仲裁員，爲皇家特許仲裁員協會資深會員（FCIArb）以及英國倫敦海事仲裁員協會正式會員（full memeber of the LMAA）。
Ambrose女士在各類仲裁案件中擔任仲裁員，涉及的規則包括ICC、LCIA、LMAA、SIAC、SCMA、UNCITRAL等。Ambrose女士在仲裁理論領域也頗有建樹，是海事仲裁經典書目《倫敦海事仲裁（London Maritime Arbitration）》一書的作者。
更多信息請參見：https://twentyessex.com/people/clare-ambrose/
1. An in-person hearing is scheduled for my arbitration over the next [few months]. In light of coronavirus(COVID-19), what should I be thinking about, what alternatives may be available(e.g. relocation, postponement, virtual), what considerations are relevant when contemplating these options, and how would alternative approaches be dealt with procedurally with the other side and the tribunal?
We all know the crisis is fast moving. Arrangements that seemed sensible a week ago now look unrealistic or inappropriate.
As matters stand there is some certainty that any hearing listed before the end of April 2020 will be significantly disrupted by global travel restrictions and public health rules.
Everyone concerned wants to reduce disruption butwork safely. Tribunals will expect parties to co-operate, adapt and compromisein order to find solutions that work. My current experience is that most parties are doing this. Obstructive and tactical positions are likely to be fairly obvious and viewed unfavourably. The client will need to be briefed but constructive discussions need to be broached promptly with the other side witha view to seeing what measures can be taken. This is not just about the hearing, consideration should be given as to potential difficulties that may arise in preparing evidence, for example ensuring experts’ meetings can take place remotely. Preparing for a hearing is always stressful. Working in isolation and with restrictions on normal facilities (for example with school closures) will create more pressure for teams in meeting deadlines. Everyone will need to be sensitive to this. Parties should feel confident to approach the tribunal for guidance, directions or an indication of whether proposals are workable.
So what are the options?
Relocation is unlikely to work in the short term dueto the global nature of the crisis. It is also probably unreliable for medium termhearings, as matters currently stand.
Postponement may be a practical option if the parties agree. No one can be confident as to developments, but the last quarter of 2020 is now being put forward by some parties. Adjournment may, however, be unattractive as one side may be keen to keep a date or it may be difficult to find an alternative date before 2021 if counsel or the tribunal are booked up.
Virtual hearings may be a viable option.
In considering whether a virtual hearing might work,the most relevant considerations are the length of the hearing, the number of participants,the type of evidence involved and what arrangements can be made for transcriptsand interpreters. There will also be practical matters such as enabling participation from different time zones.
Remote telephone hearings and remote attendance of some witnesses (and counsel) is already standard practice. A short hearing can be heard by telephone with little difficulty. A longer hearing of up to a day (typically without oral evidence) may also be achieved in a similar way to standard arrangements for remote attendance at a meeting. Where a small number of participants are involved it may be practical to have a partially remote hearing with some participants present and appropriate social distancing, although while a lockdown situation prevails the hearing would be wholly remote.
Wholly virtual oral hearings have been long promoted but rarely adopted. There is no doubt technology available for them to take place with multiple participants, screen sharing and every other element necessary for an effective hearing. A wholly virtual hearing will be new for most and some ‘rehearsal’ may be needed. There is understandable reluctance to rely on technology when practical experience suggests it may be unreliable and time-consuming. However, in the current situation it may be the only option and a risk worth taking, especially for an urgent hearing or a relatively short one. This concept is very much a part of the Green Pledge in Arbitration to travel and meet only when necessary. Perhaps this period of enforced innovation may have long-lasting positive effects.
Partial hearing or no hearing
A final option would be for the parties to ask the tribunal to decide the matters on documents and without an oral hearing, or with a much shorter telephone hearing or remote hearing, perhaps with a reduced number of witnesses. This may be useful for small, medium-sized or urgent disputes where an adjourned or remote hearing may entail disproportionate delay or cost.It is unlikely to be attractive if there are heavily disputed factual issues, e.g. credibility. It would be attractive where the parties can reach agreement on a revised timetable. However, if one side objects then the tribunal may be more cautious.It would balance the various options available, deciding whether the proposal is fair to both sides, and whether an adjourned hearing is preferable. Some institutional rules enable a party to insist on a hearing but most are some what more flexible and the tribunal would have some discretion, especially if thereare exceptional circumstances.
2. A virtual hearing has been proposed for my arbitrationin light of coronavirus (COVID-19). What practical and logistical matters will need to be considered in advance? What are the potential advantages and disadvantages of this approach?
The obvious advantage is that the hearing can take place and the dispute resolved which is the ultimate aim of the tribunal. The tribunal’s duties of fairness to the parties do not require a hearing to take place in person, and if the arrangements will enable the hearing to go ahead then this will be a significant consideration justifying it. There is also a potential upside in costs savings as while there may be a cost to use the best technology, savings in hearing rooms and travel/hotels could be significant.
Virtual hearings are still new so practice is developing to address logistics. The technology options are wide and require investigation.
To make the hearing work effectively, all participants in the arbitration need to test their technology in the space where the virtual hearing will (for each of them) be held. While working from home with the dog barking in the back of conference calls is one thing, this will not be acceptable in a hearing. Everyone must make sure they know how to mute themselves in the interests of clarity of sound and perhaps agree a protocol for when a person wishes to interrupt.
We already know that care needs to be taken with arrangements for interpreters and transcription services where participants are in different places, and also to ensure that witnesses are giving evidence independently. However, most practitioners are familiar with resolving those issues.
The most significant downside is that the process is new and unfamiliar to many. Many fear that the technology will be unreliable and communication will be poor. In particular, there is concern about the perception of witnesses in person versus on screen and the persuasiveness of counselwithout being present in the same room. It could make a difference: in The Pounda [2018] EWHC 330 (Comm) there was a different outcome when a witness gave evidence face to face compared to via video- link. However, that was an unusual case and a witness’s demeanour is increasingly given less weight. As a general rule both parties will be at the same disadvantage from weaker communication, and not unfairly prejudiced. The tribunal will look carefully at potential unfairness but tribunals are already used to hearing witnesses (and counsel) remotely, and factoring in the difficulty, soany objection would need to be justified. Given theincentive for these arrangements to work there is likely to be significant enthusiasm all round to achieve success.
3. A key witness (expert or factual) cannot attend anin-person hearing scheduled for my arbitration over the next [few months] due to travel restrictions. How should I approach this issue vis a vis the witness, the client, the other side and the tribunal?
The party’s representative should consult with the witness and the other side. It would be unusual if a solution cannot be achieved by arranging for evidence to be given remotely. This is fairly standard practice. The technical, forensic and logistical disadvantages are manageable. The tribunal is likely tomake directions that protect both sides’ interests but preserve the hearing date.
4. In light of coronavirus (COVID-19), is arbitration preferable over litigation as a method of dispute resolution given the increased flexibility inherent in arbitration proceedings generally? [This could be answered in context of negotiating a new contract and in event that adispute arising under an existing contract and the parties are considering their options in light of the pandemic].
This is a “once in a generation” challenge. We will see over the next months how the court system and the arbitration community respond. Arbitration is more flexible and it is already common for directions to be made electronically, CMCs to be heard by telephone and disputes to be resolved by documents only. It is hoped that arbitration will be agile to meet the needs of parties. If so, and virtual hearings (or even partially virtual hearings) start to work well, then they will become an attractive feature. Corporations weathering this crisis will be mindful of resilience for the next one. Arbitration will be attractive if it is seen to work in times of crisis. If it becomes cheaper and more sustainable too then that must be a bonus.
This article was first published for Lexis®PSL Arbitration.
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信息源于：仲裁研究智庫